Electronic copy available at: http://ssrn.com/abstract=1121817

Minerva Mills Ltd. & Ors. v. Union of India & Ors: A Jurisprudential

Perspective

Raghav Sharma, Student, National Law University, Jodhpur

Part I

A Snapshot of the Judgment

(I) Factual Matrix

In the aftermath of the enunciation of the doctrine of basic structure of the Constitution by the

Supreme Court in the case of Keshavanandha Bharti v. State of Kerala1, this case involved

challenge to the constitutionality of Section 4 of the Constitution (42nd Amendment) Act, 1976,

which amended Article 31C of the Constitution by substituting the words and figures "all or any

of the principles laid down in Part IV” for the words and figures "the principles specified in

Clause (b) or Clause (c) of Article 39". Article 31C, as amended reads thus:

31C. Notwithstanding anything contained in Article 31. no law giving effect to the policy

of the State towards securing all or any of the principles laid down in Part IV shall be

deemed to be void on the ground that it is inconsistent with, or takes away or abridges

any of the rights conferred by Article 14, Article 19 or Article 31, and no law containing

a declaration that it is for giving effect to such policy shall be called in question in any

court on the ground that ft does not give effect to such policy:

Provided that where such law is made by the Legislature of a State, the provisions of this

article shall not apply thereto unless such law, having been reserved for the consideration

of the President, has received his assent.

A second challenge was mounted on Section 55 of the Constitution (42nd Amendment) Act, 1976,

which inserted Sub-sections (4) and (5) of Article 368 which read thus:

1

1 (1973) 4 SCC 225.

Electronic copy available at: http://ssrn.com/abstract=1121817

(4) No amendment of this Constitution (including the provisions of Part III; made for

purporting to have been made under this article (whether before or after the

commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976)

shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation

whatever on the constituent power of Parliament to amend by way of addition, variation

or repeal the provisions of this Constitution under this article.

(II) Question before the Court

Whether the amendments introduced by Sections 4 and 55 of the

Constitution (42nd Amendment) Act, 1976 damage the basic structure of the

Constitution by destroying any of its basic features or essential elements?

(III) Decision of the Court

By a majority of 4:1, the Court held the Section 4 of the Constitution (42nd Amendment) Act,

1976 as being unconstitutional on the ground of violation of the basic structure. Similarly, the

Section 55 of the Constitution (42nd Amendment) Act, 1976 was held unconstitutional

unanimously. A detailed look at the majority and minority opinions in this regard is the key to

understanding the philosophy underlying the decisions on both the aforesaid aspects.

i. Majority Opinion

The majority opinion was delivered by Chief Justice Chandrachud on behalf of Gupta J.,

Untawalia J. and Kailasam J.

(1) Validity of Amendments to Article 368

Chandrachud, C.J., discerned the ratio of Keshavanada Bharti’s case as ‘Parliament has the

right to make alterations in the Constitution so long as they are within its basic framework’.2

The aforesaid amendments tend to confer unlimited amending power on to the Parliament

extending up to the effacement of the Constitution itself. In the Post- Keshavanada phase, the

Court refused to recognize that the constituent power of Parliament can override the basic

2

2 Minerva Mills Ltd. & Ors. v. Union of India (UOI) & Ors., AIR 1980 SC 1789, at Para 21.

structure and identity of the Constitutional document. The majority held that the limited

amending power of the Parliament was itself a basic feature of the Constitution and could not be

used to remove the limitations on this power by means of such amendments. In the words of the

majority:3

Parliament cannot, under Article 368, expand its amending power so as to acquire for

itself the right to repeal or abrogate the Constitution or to destroy its basic and essential

features. The donee of a limited power cannot by the exercise of that power convert the

limited power into an unlimited one.

Thus, clause (5) was declared as unconstitutional on the ground of damaging the basic features of

the Constitution. Moving further, clause (4) which barred judicial review in cases of

constitutional amendments was held unconstitutional as it sought to make the entire Part III

unenforceable and thus, enlarge the power of the Parliament limited by Article 13. The Court

reasoned that if a constitutional amendment goes beyond the pale of judicial review then

ordinary laws made in pursuance thereof will escape judicial scrutiny by virtue of protection

offered by such an omnipotent amendment. Hence, such a clause was in transgression of the

limitations on the amending power and hence unconstitutional.4

(2) Validity of Amendments to Article 31C

The amendment made to Article 31C vastly extended its scope from protection of laws made for

the purposes of Article 39 (b) and (c) to all the Articles under Part IV from challenge on the

ground of Article 14 and 19. The Court transformed it into a question of the following

complexion:5

The main controversy in these petitions centres round the question whether the directive

principles of State policy contained in Port IV can have primacy over the fundamental

rights conferred by Part III of the Constitution. That is the heart of the matter. Every

3 Id, at Para 22. 4 See Id, at Paras 25-27.

3

5 Id, at Para 45.

Other consideration and all other contentions are in the nature of by-products of that

central theme of the case. The competing claims of parts 111 and IV constitute the pivotal

point of the case because Article 31C as amended by Section 4 of the 42nd Amendment

provides in terms that a law giving effect to any directive principle cannot be challenged

as void on the ground that it violates the rights conferred by Article 14 or Article 19. The

42nd Amendment by its Section 4 thus subordinates the fundamental rights conferred by

Articles 14 and 19 to the Directive Principles.

In view of the ratio of Keshavanada Bharti’s case, the majority set on the enquiry whether

Article 14 and 19 could be said to be part of the basic structure of the Constitution so that no

constitutional amendment may be made to abrogate them. The majority then undertook the task

of weighing Directive Principles of State Policy [hereinafter ‘DPSPs’] against the Fundamental

Rights. In respect of DPSPs it observed:6

In the words of Granville Austin, (The Indian Constitution: Corner Stone of a Nation, p.

50) the Indian Constitution is first and foremost -a social document and the majority of its

provisions are aimed at furthering the goats of social revolution by establishing the

conditions necessary for its achievement. Therefore, the importance of Directive

Principles in the scheme of our Constitution cannot ever be over-emphasized. Those

principles project the high ideal which the Constitution aims to achieve. In fact Directive

Principles of State policy are fundamental in the governance of the country and the

Attorney General is right that there is no sphere of public life where delay can defeat

justice with more telling effect than the one in which the common man seeks the

realisation of his aspirations. The promise of a better tomorrow must be fulfilled to-day,

day after tomorrow it runs the risk of being conveniently forgotten.

However, the preservation of basic liberties provided under Part III has also been a solemn

endeavour of the Indian Constitution. In view of the drafting history of Indian Constitution, both

Part III and Part IV formed an integral and indivisible scheme and thus in the opinion of the

majority ‘to destroy the guarantees given by Part III in order purportedly to achieve the goals of

4

6 Id, at Para 47.

Part IV is plainly to subvert the Constitution by destroying its basic structure.’7 The relation

between the two parts was explained in the words quoted underneath:8

The significance of the perception that Parts III and IV together constitute the core of

commitment to social revolution and they, together, are the conscience of the

Constitution is to be traced to a deep understanding of the scheme of the Indian

Constitution. Granville Austin's observation brings out the true position that Parts III and

IV are like two wheels of a chariot, one no less important than the other. You snap one

and the other will lose its efficacy. They are like a twin formula for achieving the social

revolution, which is the ideal which the visionary founders of the Constitution set before

themselves. In other words, the Indian Constitution is founded on the bedrock of the

balance between Parts III and IV. To give absolute primacy to one over the other is to

disturb the harmony of the Constitution. This harmony and balance between fundamental

rights and directive principles is an essential feature of the basic structure of the

Constitution…. Those rights are not an end in themselves but are the means to an end,

The end is specified in Part IV.

Thus, the majority echoed that the goals set out in Part IV have to be achieved without the

abrogation of the means provided for by Part III. Anything that destroys the balance between the

two parts will ipso facto destroy an essential element of the basic structure of our Constitution.

Moving further, it held that the impugned constitutional amendment denuded Articles 14 and 19

of their functional utility by abrogating their affect altogether in respect of laws under Article

31C. Since bulk of laws would be relatable to Part IV, Article 14 and 19 will virtually cease to

operate. Equating a total deprivation of fundamental rights in a limited area to abrogation of

fundamental rights, it held that:9

Every State is goal-oriented and claims to strive for securing the welfare of its people.

The distinction between the different forms of Government consists in that a real

democracy will endeavour to achieve its objectives through the discipline of fundamental

7 Id, at Para 59. 8 Id, at Para 61.

5

9 Id, at Para 68.

freedoms like those conferred by Articles 14 and 19. Those are the most elementary

freedoms without which a free democracy is impossible and which must therefore be

preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is

the greatest when Government's purposes are beneficent. If the discipline of Article 14 is

withdrawn and if immunity from the operation of that article is conferred, not only on

laws passed by the Parliament but on laws passed by the State Legislatures also, the

political pressures exercised by numerically large groups can tear the country asunder by

leaving it to the legislature to pick and choose favoured areas and favourite classes for

preferential treatment.

Hence, the majority declared the amendment to be beyond the powers of Parliament as violative

of the essential features of the Constitution while emphasizing that:10

Three Articles of our Constitution, and only three, stand between the heaven of freedom

into which Tagore wanted his country to awake and the abyss of unrestrained power.

They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden

triangle which affords to the people of this country an assurance that the promise held

forth by the Preamble will be performed by ushering an egalitarian era through the

discipline of fundamental rights, that is, without emasculation of the rights to liberty and

equality which alone can help preserve the dignity of the individual.

ii. Minority Opinion

The minority opinion delivered by Justice Bhagwati is elegant, nuanced and presents a plausible

alternative to the way the majority looked upon the question of balance between Part III and Part

IV. Though, the opinion deals with the validity of Articles 31A and 31B as well but as that is a

part of the judgment in Waman Rao v. Union of India11, the author will not be deliberating on

that part. Relying on the judgment of Indira Gandhi v. Raj Narain12, Justice Bhagwati opined

that basic structure or essential features of the Constitution have to be found within the specific

provisions of the Constitution itself. He quoted Justice Mathew from Raj Narain’s case:

10 Id, at Para 79. 11 (1981) 2 SCC 362.

6

12 AIR 1975 SC 2299.

“To be a basic structure it must be a terrestrial concept having its habitat within the four

corners of the Constitution. What constitutes basic structure is not like a twinkling star up

above the Constitution.”

(1) Validity of Amendments to Article 368

Justice Bhagwati opined that clause (4) which barred judicial review of a constitutional

amendment was invalid as it damaged two basic features of the Constitution viz. limited

amending power of the Parliament and judicial review over the transgression of limitations on

Parliament’s power.13 It sought to arrogate the Parliament from the status of ‘creature of the

Constitution’ to an authority ‘above the Constitution’ by removing all limitations on the

constituent power and empowering it to alter the basic structure and identity of the Constitution.

Secondly, the Constitution broadly demarcates the functions of the three organs and charges the

judiciary with the function of adjudging the validity of laws. By pre-declaration of the validity of

all amendments, the Parliament usurped the function of judicial review and thus violated the

aforesaid basic feature of the Constitution. Furthermore, in view of the limited amending power

of the Parliament as declared by the Court in Keshavananda Bharati’s case it could not have

declared its power to be unlimited under clause (5) and thus, clause (5) is unconstitutional and

void. This amendment had the effect of transforming the Indian constitution from a controlled

constitution to an uncontrolled one and thus, violated an essential feature of the Constitution.

(2) Validity of Amendments to Article 31C

Examining the inter-relationship between Part III and Part IV, Justice Bhagwati opined that from

a human rights perspective, there was no essential differentiation in the nature of civil and

political rights enshrined under Part III and socio-economic rights under Part IV. The division

into justiciable and non-justiciable compartments does not subtract from their relative

importance and significance.14 Describing the nature of Constitution as a ‘social document’, he

opined that ‘majority of its provisions are either directly aimed at furthering the goals of the

13 Minerva Mills Ltd. & Ors. v. Union of India (UOI) & Ors., AIR 1980 SC 1789, at Paras 91-95.

7

14 Id, at Para 112.

socio-economic revolution or attempt to foster this revolution by establishing the conditions

necessary for its achievement’.15 Speaking on the inter-relationship he stated:16

The Fundamental Rights are no doubt important and valuable in a democracy, but there

can be no real democracy without social and economic justice to the common man and to

create socio-economic conditions, in which there can be social and economic Justice to

every one, is the theme of the Directive Principles. It is the Directive Principles which

nourish the roots of our democracy, provide strength and vigour, to it and attempt to

make it a real participatory democracy which does not remain merely a political

democracy but also becomes social and economic democracy with Fundamental Rights

available to all irrespective of their power, position or wealth. The dynamic provisions of

the Directive Principles fertilise the static provisions of the Fundamental Rights. The

object of the Fundamental Rights is to protect individual liberty, but can individual

liberty be considered in isolation from the socio-economic structure in which it is to

operate! There is a real connection between individual liberty and the shape and form of

the social and economic structure of the society. Can there be any individual liberty at all

for the large masses of people who are suffering from want and privation and who are

cheated out of their individual rights by the exploitative economic system? Would their

individual liberty not come in conflict with the liberty of the socially and economically

more powerful class and in the process, get mutilated or destroyed?

Discarding the Hohfeldian analysis of rights and duties as jural perpetual correlatives, he opined

that despite the fact that Part IV does not create any right in the citizens to enforce the

provisions, it still casts a duty on the State to implement the provisions contained under

it.17Absence of a jural correlative ‘right’ does not detract from the binding nature of the State’s

duty and in his own illuminating words:18

15 Id, at Para 113. 16 Ibid. 17 Id, at Para 116.

8

18 Ibid.

In fact, non-compliance with the Directive Principles would be unconstitutional on the

part of the State and it would not only constitute a breach of faith with the people who

imposed this constitutional obligation on the State but it would also render a vital part of

the Constitution meaningless and futile.

Further illuminating upon the absence of precedence of Fundamental Rights over the DPSPs, he

stated that:19

Would such a law enacted in discharge of the constitutional obligation laid upon the State

under Article 37 be invalid, because it infringes a Fundamental Right? If the court takes

the view that it is invalid, would it not be placing Fundamental Rights above Directive

Principles, a position not supported at all by the history of their enactment as also by the

constitutional scheme already discussed by me. The two constitutional obligations, one in

regard to Fundamental Rights and the other in regard to Directive Principles, are of

equal strength and merit and were is no reason why, in case of conflict, the former should

be given precedence over the latter.….The effect of giving greater weightage to the

constitutional mandate in regard to Fundamental Rights would be to relegate the

Directive Principles to a secondary position and emasculate the constitutional command

that the Directive Principles shall be fundamental in the governance of the country and it

shall be the duty of the State to apply them in making laws.….The result would be that a

positive mandate of the Constitution commanding the State to make a law would be

defeated by a negative constitutional obligation not to encroach upon a Fundamental

Right and the law made by the legislature pursuant to a positive constitutional command

would be delegitimised and declared unconstitutional. This plainly would be contrary to

the constitutional scheme because, as already pointed out by me, the Constitution does

not accord a higher place to the constitutional obligation in regard to Fundamental

Rights over the constitutional obligation in regard to Directive Principles and does not

say that the implementation of the Directive Principles shall only be within the

permissible limits laid down in the Chapter on Fundamental Rights.

However, venturing forth to support Article 31 C, he opined that the said amendment was made

with a view to resolve the conflict between Fundamental Rights and DPSPs. In his own words:20

19 Id, at Para 118.

9

20 Ibid.

I find it difficult to understand how it can at all be said that the basic structure of the

Constitution is affected when for evolving a modus vivandi for resolving a possible

remote conflict between two constitutional mandates of equally fundamental character,

Parliament decides by way of amendment of Article 31C that in case of such conflict the

constitutional mandate in regard to Directive Principles shall prevail over the

constitutional mandate in regard to the Fundamental Rights under Articles 14 and 19.

The amendment in Article 31C far from damaging the basic structure of the Constitution

strengthens and re-enforces it by giving fundamental importance to the rights of the

members of the community as against the rights of a few individuals and furthering the

objective of the Constitution to build an egalitarian social order where there will be social

and economic justice for all and every one including the low visibility areas of humanity

in the country will be able to exercise Fundamental Rights and the dignity of the

individual and the worth of the human person which are cherished values will not remain

merely the exclusive privileges of a few but become a living reality for the many.

In his esteemed opinion, no law which is really and genuinely for giving effect to a Directive

Principle could be inconsistent with the egalitarian principle and therefore, the protection granted

to it under the amended Article 31C against violation of Article 14 cannot have the effect of

damaging the basic structure. He specified that every law enacted under Article 31C is required

to satisfy the test of ‘real and substantial connection’ and judicial review will be open in this

limited arena. Article 31 C will only protect the provisions which are basically and essentially

necessary for giving effect to the Directive Principles and not those of incidental and subsidiary

character. Hence, no carte blanche immunity being granted to all laws, the amendment to Article

31 C was not unconstitutional.

Part II

Jurisprudential Analysis

10

While recognizing the importance of a rich jurisprudential analysis possible through application

of alternative strands of thought viz. post-modernist thought and social constructivism, the author

humbly detracts from such an analysis in view of a nuanced analysis of Keshavananda Bharati’s

case on these very lines which the author had an opportunity to peruse. As the Minerva Mills’

case applies the same basic structure doctrine, a reference to the aforesaid jurisprudential

analysis of the basic structure doctrine may suffice for the purposes of this paper.21 In this part of

the paper, I seek to analyse the jurisprudential underpinnings of the decision in Minerva Mills’

case on the inter-relationship of Part III and Part IV of the Indian Constitution and the two

divergent opinions rendered. The analysis is set on a three fold pedestal viz. Roscoe Pound’s

Theory of Valuation of Competing Interests, the Perspective of Legal Realists and the

Hohfeldian Analysis on Jural Correlation between Right and Duty.

(1) Roscoe Pound’s Theory of Valuation of Competing Interests

Justice Benzamin Cardozo describes the ‘weighing of interests’ as a principal function of the

judge.22 However, he offers no standard for valuation of such interests except a generalized

opinion that the choice made by the judge should be premised on “experience, study and

reflection”, and “life itself”.23 To move to a concrete test, it is more appropriate to use Pound’s

method of valuation of interests.24 Pound deliberates on the valuation of interests and the

guiding standards to be applied in weighing their comparative strength and desirability in

cases of conflict between two such interests. In his esteemed opinion, a balance can never be

struck between an ‘individual interest’ and a ‘social interest’ as pitting these two against each

other in this form involves a pre-judgment in the latter's favour.25 No sane person making a

sound judgment will ever place an ‘individual interest’ above the whole ‘collective interest’ and

thus, no question of balance can ever arise. Pound emphasized the inter-relationship between

‘individual’ and ‘social’ interests whereby the former can be regarded as a part of the latter and

thus, capable of being transformed into form of the latter.26 Thus, the proper method of weighing

interest in cases of ‘balance’ is to put them on the same plane by translation of individual

21 See Burman, Anirudh, "Locating Post-Modern Constitutionalism in India: The Basic Structure Doctrine".

Available at SSRN: http://ssrn.com/abstract=1006621. 22 BENJAMIN CARDOZO, NATURE OF JUDICIAL PROCESS 113 (Indian Reprint 2002). 23 Ibid. 24 ROSCOE POUND, JURISPRUDENCE 328 (Law Book Exchange Ltd., New Jersey, vol. III, 1959). 25 Id, at 328.

11

26 Id, at 329.

interest into larger social interest of the same kind relating to the social group to which

individual belongs and then assess the need for a law to protect and facilitate such interests.27

In Minerva Mill’s case, the problem before the Court was exactly the same viz. to decide the

inter-relationship between Fundamental Rights and DPSPs and the difference in approach of the

majority and minority offers valuable insights into the manner of determining their inter-se

primacy. The majority opinion seconds Pound’s method by refusing to regard Part III as merely a

fasciculus of individual rights and regard them as subservient to the social interests embodied in

Part IV.28 It regards Fundamental Rights as a ‘means’ to an ‘end’ which is the DPSPs and

declares the harmony and balance between them as an essential feature of the basic structure of

the Constitution.29 The essence of the approach is to refuse to view Fundamental Rights e.g. the

right to equality under Article 14 as a right of an individual petitioner in a case but to regard it as

a collective interest in achieving an egalitarian society. Individual interests are seen as a means to

achieve broader social interests which the majority opinion views as a sum of these individual

interests. In the author’s opinion, the ‘balance’ attained is immaculate as the majority refuses to

validate the complete abrogation of the collective interests in securing civil and political rights

for the attainment of other social interest under the DPSPs. In essence this is Pound’s approach

of balance which can be described in his own words as:30

Secure all interests so far as possible with the least sacrifice of the totality of the interests

or the scheme of the interests as a whole.

On the contrary, the minority opinion is explicit in its recognition that the conflict between Part

III and Part IV can be legitimately resolved by giving primacy to DPSPs over Fundamental

Rights.31 It eschews from recognizing the Fundamental Rights as social interest in securing the

civil and political rights of the citizens. The conclusion concerning primacy of DPSPs over

27 Id, at 328-29. 28 Minerva Mills, supra note 2, at Paras 48-61. 29 Id, at Para 61. 30 ROSCOE POUND, supra note 24, at 334.

12

31 Minerva Mills, supra note 2, at Para 118.

Fundamental Rights cannot be called a ‘balance’ by any stretch of imagination. Applying

Pound’s approach, there cannot be any quarrel to the conclusion that Honourable Justice

Bhagwati committed a logically fallacy in weighing two different kinds of interest, individual

and social, and thus, made a pre-judgment rather than a considered judgment on ‘balance’

between the two.

(2) Conflict between Part III and Part IV: A Perspective of Legal Realism

We may try to see things as objectively as we please. Nonetheless we can never see with any eyes

except our own.32

Legal formalism postulates law as 'an internally valid, autonomous, and self-justifying science' in

which right answers are 'derived from the autonomous, logical working out of the system.’33

Formalists ascribe to the view that the role of a judge is ‘to find the law, declare what it says, and

apply its pre-existing prescriptions’ without reference to social goals or human values.34 On the

other hand, realists discard this mechanist conception of a judge by relying on two factors viz.

doctrinal indeterminacy and doctrinal multiplicity. 35 Doctrinal indeterminacy implies the

ambiguity in the application of general legal rules or doctrines in hard cases while doctrinal

multiplicity refers to multiple choices presented by each rule in its manner of application as well

as the interaction of legal doctrines with others in the legal system. Thus, a judge always has to

make a choice in the decision making process. Furthermore, one of the central tenets of the

realist approach is to stress on ‘jurisprudence of ends’ i.e.:

Legal realists insist that legal reasoning should be oriented towards the human ends

served by law; that a jurisprudence of rules be substituted by a jurisprudence of ends.

Lawyers must forthrightly justify legal prescriptions in terms of their promotion of human

values. Legal institutions and legal rules must be evaluated in terms of their effectiveness

32 BENJAMIN CARDOZO, supra note 22, at 13. 33 Hanoch Dagan, The Realist Conception of Law, 57 U. Toronto L.J. 607, 609 (2007).34 Ibid.

13

35 Id, at 611-612.

in promoting their accepted values and the continued validity and desirability of these

values. 36

The decision in Minerva Mills’s case is an apt demonstration of the realist perspective. The

attempt of the author is not to judge whether the judges were formalists or legal realists in their

approach but whether the opinions reflect the shades of these contradictory strands. Both the

opinions in the case offer new strands of thought; there were no pre-ordained legal doctrines

before the Court to apply for determination of the question of inter-relationship between Part III

and Part IV. Formalism stood knocked out. Faced with choice between DPSPs and Fundamental

Rights, both opinions are anchored in social goals and human values as evident from the bare

reading of the following passages:

Majority Minority

Three Articles of our Constitution, and

only three, stand between the heaven

of freedom into which Tagore wanted

his country to awake and the abyss of

unrestrained power. They are Articles

14, 19 and 21. Article 31C has

removed two sides of that golden

triangle which affords to the people of

this country an assurance that the

promise held forth by the Preamble

will be performed by ushering an

egalitarian era through the discipline

of fundamental rights, that is, without

emasculation of the rights to liberty

and equality which alone can help

preserve the dignity of the individual.

The amendment in Article 31C far

from damaging the basic structure of

the Constitution strengthens and re-

enforces it by giving fundamental

importance to the rights of the

members of the community as against

the rights of a few individuals and

furthering the objective of the

Constitution to build an egalitarian

social order where there will be social

and economic justice for all and every

one including the low visibility areas

of humanity in the country will be able

to exercise Fundamental Rights and

the dignity of the individual and the

worth of the human person which are

cherished values will not remain

merely the exclusive privileges of a

few but become a living reality for the

many.

14

36 Id, at 628-630.

Can the opinions and the conclusions arrived at by the judges be regarded as simplistic and

mechanical application of pre-existing legal doctrines? Doesn’t the conflict presented before the

Court involve judgment on intricate questions of constitutional policy? What do the opinions of

both majority and minority littered with considerations of social values of fundamental freedoms

and socio-economic justice signify? To the author, the opinions present an evidence of the legal

realist strand of thought in jurisprudence and repudiate a formalistic conception of law. A

discussion of nature of judicial process as projected by Justice Benzamin Cardozo will further

clarify the point sought to be made.

Discussing the role of a judge as a legislator, Justice Cardozo ascribes an important place to the

interaction between the subjectivity of the judge as a human being and objectivity of standards

expected of him to be applied in arriving at a decision.37 A judge creates ‘interstitial law’ i.e.

within the gaps of law left open by the legislator38 and thus, such ‘creation of law’ demands from

the judge the wisdom of the legislator himself.39 Cardozo’s assertion that in making choices the

judge should be base his judgment on “experience, study and reflection”, and “life itself”,

implies that application of objective standards in judicial decision making remains a myth as

every judge, subject to all fallacies of human nature, may view solution to a problem in

different context from how others may perceive it. To quote Justice Cardozo:40

Deep below consciousness are other forces, the likes and the dislikes, the predilections

and the prejudices, the complex of instincts and emotions and habits and convictions,

which make the man, whether he be a litigant or a judge.

Cardozo recognizes that every system of jurisprudence tends to the ‘ideal of objective truth’ but

the human element of the judge as decision maker renders this ideal utopian.41 Such subjectivity

may specially creep in the use of the sociological method rather than the application of

37 BENJAMIN CARDOZO, supra note 13, at 167-168. 38 Id, at 113, 67-70. 39 Id, at 115. 40 Id, at 167.

15

41 Id, at 168-169.

precedents as the former conditions the decision making process of the judge by the standard of

‘social welfare’ – a subjective concept in itself.42

A look at the two sets of opinion reveals this dichotomy. Both majority and minority agree on

the application of the precedent of Keshavananda Bharati’s case as the amendment was clearly

in contravention of the law laid down by the Supreme Court. However, divergence occurs while

making choice between Fundamental Rights and DPSPs. The judges were clearly faced with a

question of ‘constitutional policy’ as the nature of question demanded a determination by the

Constitutional makers themselves who chose to maintain a silence on it.43 Acting in the capacity

of independent legislators (as Justice Cardozo puts it), the judges in majority refused to abrogate

one for another and linked them as ‘means’ and ‘ends’ while Justice Bhagwati accepted the

primacy of one over another by deferring to the choice made by the Parliament through

amendment in Article 31C. The divergence and the exposition undertaken for the vindication of

their stands by the majority and the minority explain the nature of judicial process to which

Cardozo adverts at length in the Nature of Judicial Process.

(3) Hohfeldian Analysis on Jural Correlation between Right and Duty

Wesley Newcomb Hohfeld’s contribution to the field of jurisprudence consists in a lucid and

logical exhibition of four meanings of the word ‘right’ in a scheme of “opposites” and

“correlatives”.44 In his analysis, “rights” and “duties” form jural correlatives. In other words, if X

has a right against Y that he shall stay off the former's land, the correlative (and equivalent) is

that Y is under a duty towards X to stay off the place. Thus, Hohfeld sought to define the scope

of “rights” in terms of its correlative “duty”45 and the existence of a ‘duty’ on one person implies

the existence of ‘claim-right’ in another. In the constitutional paradigm, rights of individuals

flow as reflex of the obligations cast on the State under the Constitution.46

42 Id, at 71-72. 43 Minerva Mills, supra note 2, at Para 118. 44 Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J.

16, 30 (1913).45 Id, at 31.

16

46 S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors., (1990) 1 SCC 328.

The minority opinion in Minerva Mills’ case raises an interesting question of application of this

Hohfeldian analysis on Part IV i.e. the consequences of non-justiciability of Part IV on the nature

of obligation cast on the State to implement its principles. The question is central to the analysis

of inter-se primacy of DPSPs and Fundamental Rights. In fact, in State of Madras v.

Champakam Dorairajan 47 , the Court had held that because Fundamental Rights are made

enforceable in a court of law and Directive Principles are not, "the Directive Principles have to

conform to and run as subsidiary to the chapter on Fundamental rights."

Thus, the million dollar question from a jurisprudential perspective is whether Part IV can really

be regarded as a misfit in the Hohfeldian scheme of right-duty correlation? To the author, the

answer appears to be an emphatic NO. From the drafting history of the Indian Constitution, it is

amply clear that there was no division between Part III and Part IV in the original proposed

scheme. 48 The differentiation was made at a later stage whereby Part IV was specifically

rendered unenforceable in the courts of law49 by virtue of Article 37.50 It is obvious that DPSPs

embody socio-economic rights of the citizens and cast a duty on the State to formulate its laws

for attainment of these rights. The rights-duty correlation is established and the duty to

implement DPSPs on the State does not exist in vacuum. It is important to understand the key

distinction between ‘existence of right’ and ‘enforceability of right’. Hohfeldian scheme is

limited to the postulate that ‘existence of duty’ implies ‘existence of right’. The ‘enforceability of

right’ is a concept more akin to power which is best described in the following words:51

Right is often understood as a will power conferred by law. A 'right' in the sense is

present if the conditions of the sanction that constitutes a legal obligation includes a

motion, normally of the individual in relation to whom the obligation exists ; the motion

is aimed at the execution of the sanction and has the form of a legal action brought before 47 AIR 1951 SC 226, at Para 10. 48 Minerva Mills, supra note 2, at Para 112. 49 Ibid. 50 Application of the principles contained in this Part.—The provisions contained in this Part

shall not be enforceable by any court, but the principles therein laid down are nevertheless

fundamental in the governance of the country and it shall be the duty of the State to apply these

principles in making laws.

17

51 S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors. (1990) 1 SCC 328.

the law applying organ. Then this organ may apply the general norm to effectuate the

right, which is the reflex of the legal obligation by executing the sanction. The right

which is the reflex of legal obligation is equipped with the legal power of the entitled

individual to bring about by a legal action the execution of a sanction as a reaction

against the non-fulfilment of the obligation whose reflex is his right; or as it is sometimes

called, the enforcement of the fulfilment of this obligation. To make use of this legal

power of motion is exercise of the right.

The distinction may appear artificial as it is correct to argue that a right without the element of

‘enforceability’ is tantamount to no right at all. However, the difference between ‘existence’ and

‘exercise’ is too concrete to be denied. To take an example, an ‘aeroplane’ cannot be called

anything but an ‘aeroplane’ even if the law imposes a ban on everyone to fly it. Similarly, the

mere fact that Article 37 bars the Courts from enforcing the provisions of Part IV does not

detract from the essential truth that they are rights and have been made ‘unenforceable’ to serve

overriding social imperatives. A more apt example is offered by Article 358 which gives the

power to the State to override Article 19 in cases of emergency whereby Article 19 becomes

‘unenforceable’. But this does not mean that citizens do not have the freedom of speech or

freedom of movement in such a situation.52 Unenforceability does not detract from existence of

the right. In fact, enforceability is not even an essential element of law itself.53 Article 37 merely

puts the socio-economic rights of the citizens in perpetual suspension and it is clear that in future

if Parliament makes Part IV enforceable, this suspension will end. An empirical justification of

the stand taken by the author can be found in the later judgments of the Supreme Court itself

52 See Opinion of Justice H.R. Khanna in Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976

SC 1207, at Paras 168-169 [Mere suspension of Article 21 cannot deprive individuals of the right to life which is

independent of the Constitution and the Constitution merely recognizes this pre-existing right].

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53 G. G. Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement, The

Modern Law Review, Vol. 19, No. 1. (Jan., 1956), pp. 1-13, at p.2; A. L. Goodhart, The Nature of International Law,

Transactions of the Grotius Society, Vol. 22, Problems of Peace and War, Papers Read before the Society in the

Year 1936. (1936), pp. 31-43, at pp.40-41.

whereby it has attempted to read Fundamental Rights in light of the Directive Principles54 and

has thus, ascribed limited de facto enforceability to the latter.

Conclusion The divergence of majority and minority opinion in this case poses interesting jurisprudential

issues relating to balance of interests, the decision making process of judges in areas where no

pre-ordained rules are present and the peculiar place of Part IV, declared to be unenforceable by

the Constitution itself, in the Hohfeldian right-duty paradigm. The object of this short paper was

identification and exposition of these jurisprudential issues posed by the Minerva Mills’ case. To

be as objective as possible in highlighting these issues and attempting an analysis thereof, the

author has refrained from adverting to the correctness of the decision on merits or the correctness

of either of the approaches taken in the case itself by the majority and the minority.

19

54 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802; Consumer Education and Research Centre v. Union

of India, AIR1995 SC 1811; Unnikrishnan v. State of Andhra Pradesh , AIR 1993 SC 2178; Dalmia Cement

(Bharat) Ltd. v. Union of India, AIR 1984 SC 802.